Questions have been raised with regards to the current re-zoning applications and planning process within Brookswood – Fernridge.
The reason these questions have been raised is due to the unique history of Brookswood-Fernridge. It has a 30 year old OCP, originally drafted to constrain growth until servicing was available which has been in place for some time, various resolutions to slow growth, failed moratoriums (2004) and failed updates (the latest being in 2014) have left Council with no ability to delay, deny or defer development applications. To be clear, on the succinct and concise legal opinion given to Council, a postponement or moratorium is not available to us and to do so would very likely result in a lawsuit against the Township that we would have no chance of winning.
To review this matter we engaged one of the architects and draftors of “Local Government Act”, Lidstone and Company and here is what we were advised:
1. Council is obligated to consider the zoning applications, in accordance with the requirements of the Local Government Act, and if Council considers the applications reasonably and in good faith then Council may either proceed with readings or reject the applications – however, if Council merely defers without duly considering the applications reasonably and in good faith, we think the applicants would be successful in applying to the BC Supreme Court for an order that Council consider the applications in accordance with directions of the court;
2. Council may proceed with any of the rezonings despite the 2004 policy resolution, because the resolution has no legal effect on the land that is subject to the resolution or on the development rights of owners of the land;
3. When Council considers the rezoning applications, Council is obligated by section 884(2)(a) to consider whether the zoning would be consistent with the official community plan – however, we do not think there is a requirement for Council to proceed with an amendment to the official plan or a new neighbourhood concept plan as a condition precedent to adopting the five proposed zoning amendments;
4. If Council refuses to consider the zoning applications, to either move them along the rezoning process or to finally defeat them on good planning grounds after duly considering the applications reasonably and in good faith, the applicants may apply to the BC Supreme Court for an order that Council consider the applications – the grounds for such an application under the Judicial Review Procedure Act are set out in section 1 of this letter – also, as stated, if Council merely defers without duly considering the applications reasonably and in good faith, we think the applicants would be successful in applying to the BC Supreme Court for an order that Council consider the applications in accordance with directions of the court;
5. In our (legal counsel)opinion, it is likely in these circumstances that a Court would direct Council to consider the applications, with express directions to proceed without being bound by the 2004 resolution or the need for a new neighbourhood plan – in such case, costs would likely be awarded against the Township;
As such, just like in every other community in the Township that has an existing Community Plan, landowners are able to make application and to have their developments considered in accordance with the Community Plan that is in place and, in the case of Brookswood/Fernridge, it has been since 1987.
Councillor Charlie Fox